January 07, 2000 05:20pm Special Report: Does kiddie porn count when the "kids" are virtual?Source: Court TVby: Harriet Ryan

(Court TV) — Let's say one night you decide to make a few computerized greeting cards. You use Photoshop to morph a snap of your 4-year-old son into a car ad so it appears as if he's driving a Ferrari. You then send them off to his grandparents.

A few days later, the police show up at your door, wave the greeting card, and arrest you for endangering the welfare of a child by letting him pilot a Ferrari solo. That's crazy, you'd probably say. It never happened. I made the whole thing up on my computer.

But what if the picture you created wasn't a greeting card, but child pornography, and what if the intended recipients weren't grandparents, but pedophiles. It's still a computer-generated fantasy that never actually happened. But is it still so crazy for the police to come?

Not according to current law. The U.S. statute passed in 1996, when morphing programs were just becoming commonplace on PCs, doesn't make a distinction in crime or punishment between possession of child pornography that involved real children and possession of realistic, but totally faked image of children engaged in sex acts.

Who cares, you might say. It's all disgusting. As societal scourges go, kiddie porn has a high shudder factor. The very thought of children — real, virtual, or otherwise — having sex makes many of us physically ill, and even among hardened criminals child pornography is considered vile.

However, plenty of repellent things are perfectly legal, including adult pornography with rape and incest themes. Child pornography was outlawed not because its images offended our sensibilities, but because of the abuse of the children used to make it. In the pre-computer days of child pornography, a picture of a child being violated denoted the actual rape of a minor.

Nowadays, a picture of a child being raped may simply signify that a pedophile got busy with his Adobe Photoshop. Real children and actual photographs aren't even necessary, and First Amendment advocates are charging that our child pornography law is infringing on the right to free speech.

"Look, I have three grown children and lots of young nieces and nephews," said First Amendment lawyer H. Louis Sirkin, taking a defensive stance that's become a common refrain amongst opponents of the current kiddie porn law.

"And I worry about them being abused, but I worry a lot more about them growing up in a free society, and this [law] is just so un-American," he said.

Sirkin represented a free speech group including pornographers, graphic artists, photographers, and nudists in a successful attempt to get the law, known as the Child Pornography Protection Act, declared unconstitutional in a California federal court last month. The court agreed with the free speech advocates that by preventing computer-generated images that merely "seemed" or "appeared" to be porn, the law stifled free speech.

As a result of the decision, Patrick Naughton, the former Infoseek executive convicted of possessing kiddie porn, was freed on bail. The images he was convicted of possessing were real, but the trial judge determined the federal decision made a new trial inevitable. The law is far from dead, however. Two other federals courts upheld it, and the Supreme Court will ultimately have to decide the issue.

What the government told the California court and is likely to tell the high court is that outlawing virtual child porn is a vital tool in controlling the entire kiddie porn industry, now flourishing on the Internet. The making of this type of smut might not hurt any children initially, but its distribution is sure to hurt kids later, the government argues.

These secondary victims are children who are shown the morphed images. Children's advocates and law enforcement agents say pedophiles often use kiddie porn as a means of seduction.

"They use the images almost like trading cards," said Jack Samad, the director of Internet safety solutions at the National Coalition for the Protection of Children & Families. "It's their currency, a way to make these acts natural to children. 'This underage child is doing this and they are having fun, you should do it too.' It's stripping away their innocence."

It's a disturbing argument, but the California court didn’t buy it. Like a police detective demanding "just the facts," the judges pointed out that the government had no hard evidence that morphed porn caused any secondary effect. They referred the government to a short law review article that concluded, "there is currently an extremely weak empirical showing that computer-generated pornography will be used to induce participation by children in sexual conduct."

"We don't know that virtual child pornography has any effects other than it's gross and disgusting, and that's not a reason to ban it," said attorney Ronald W. Adelman, who wrote the article. There is so little information that someone could reasonably argue that pedophiles might attack fewer real children if sated by virtual porn, suggested Adelman.

If, down the road, the justice department does a study showing a link, the Supreme Court would have a "compelling reason" to uphold the law, Adelman said. But even with a truckload of studies, the high court might hesitate in cracking down on images of free expression simply because they are harmful to a few groups in society, in this case kids and pedophiles.

For example, razor blades can be dangerous in the hands of children and nut-cases, but plenty of people use them without harm.

"Are we really going to reduce what is available to the adult population so that only material suitable to minors and pedophiles is available?" said Sirkin. "Sure, it might make society more orderly, but so would having a dictator, and that's just not allowed under the Constitution."

Comparing the right to free elections to the right to make and distribute fake child porn may seem far-fetched, but as Adelman said, "If you're not consistent with the First Amendment, it doesn't mean anything."

When the Supreme Court does take up the Child Pornography Protection Act, they are likely to consider more than just virtual smut. In the wake of Columbine, politicians discussed bans on all sorts of things virtual, including violent movies, television, and video games. The country, if not scientists, has concluded that even virtual things can cause harm. Now the courts will have to determine if there is any real harm, and then weigh that harm against our right to free expression.

It would appear we have at least the beginnings of a solution in a very un-technical law already on the books. We keep alcohol away from people under the age of 21, and make it a crime for adults to provide it to them. Perhaps virtual smut and violence require similar restrictions.

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